United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion for Leave to File a
Second Amended Complaint, to Serve Defendant Melissa Tate via
Publication and, in the alternative, for Service by a United
States Marshal. (ECF No. 34.) For the reasons that follow,
the motion is GRANTED. The Court
ORDERS that the Second Amended Complaint be
filed. The Court further ORDERS that
Plaintiff is authorized to serve Tate by publication.
remains of this declaratory judgment action, Plaintiff
Capitol Specialty Insurance Corporation seeks a determination
of its liability insurance coverage with respect to Defendant
Melissa Tate's state tort suit pending against Defendant
Tayworsky LLC, d/b/a/ Monkey Barrel Bar
(“Tayworsky”). Plaintiff seeks a declaration that
it has no duty to defend or indemnify Tayworsky in that
operates a bar in downtown Charleston, West Virginia. Tate
suffered a gunshot injury while patronizing the bar on July
4, 2015. At the time, Tayworsky was covered by a general
commercial liability insurance policy issued by Plaintiff.
Plaintiff initiated the instant declaratory judgment action
on November 23, 2016 after Keona Brock, another patron
injured during the shooting, filed a state court lawsuit
alleging that Tayworsky caused her injuries by failing to
provide adequate security. Though Tate had not yet filed a
lawsuit of her own, Plaintiff joined her as a Defendant in
anticipation that she would soon do so.
served Brock and Tayworsky without complication. Service on
Tate has proved more difficult. Plaintiff's process
server tried unsuccessfully to locate Tate and the attorney
retained to provide representation in the anticipated state
court matter refused to accept process on Tate's behalf.
Eventually, the parties agreed to mediate all claims arising
out of the July 4, 2015 incident. The mediation was held on
June 22, 2017. Brock's underlying state case was settled
at the mediation and Brock has since been dismissed as a
party to this suit. (See Order, ECF No. 33.) Though
Tate appeared in person at the mediation, Plaintiff made no
attempt at service because the time for service of process
had lapsed. The mediation was unsuccessful as to Tate's
claims and Tate proceeded to file her state court lawsuit on
July 3, 2017.
Court thereafter extended the deadline to effect service on
Tate to September 30, 2017. Plaintiff has since made
extensive attempts to serve Tate, all unsuccessful. Plaintiff
now moves to file a Second Amended Complaint and to serve
Tate by publication. Not surprisingly, Tate has not
motion presents dual requests: a request for leave to file a
Second Amended Complaint and a request for authorization to
serve Tate by publication. The Court addresses each request
Motion to Amend
to amend a pleading should be freely given “when
justice so requires.” Fed.R.Civ.P. 15(a).
“‘[L]eave to amend a pleading should be denied
only when the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving
party, or the amendment would be futile.'”
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
Cir. 1999) (quoting Johnson v. Oroweat Foods Co.,
785 F.2d 503, 509 (4th Cir. 1986)). However, where a motion
for leave to amend pleadings is filed past the deadline
established by the scheduling order, the movant must meet the
“good cause” standard for modification of a
scheduling order as well as the Rule 15(a) standard.
Fed.R.Civ.P. 16; see Nourison Rug Corp. v.
Parvizian, 535 F.3d 295, 298-99 (4th Cir. 2008) (noting
tension between Rule 15 and Rule 16).
Scheduling Order previously entered in this action set a
deadline of April 17, 2017 for amendment of pleadings.
Nevertheless, good cause exists for the amendment of
Plaintiff's pleading because Tate recently filed a state
court lawsuit against Plaintiff's insured. The Rule 15(a)
standard also weighs in favor of amendment. Tate will suffer
no prejudice because she has not yet been served. The failure
to achieve service is not due to bad faith or lack of
diligence on Plaintiff's part, however. As explained
below, Plaintiff has pursued all feasible methods to locate
and serve this Defendant. The lack of service despite those
efforts suggests that Tate is purposefully evading service.
The Court therefore GRANTS leave to file the
Second Amended Complaint.
Motion to Serve via Publication
According to Federal Rule of Civil Procedure 4(e)(1), an
individual-other than a minor, an incompetent person, or a
person whose waiver has been filed--may be served in a
judicial district of the United States by: (1) following
state law for serving a summons in an action brought in
courts of general jurisdiction in ...